Thursday, January 28, 2010

It was a dramatic moment, wasn't it? With a handful of the justices seated immediately before him, the President criticized the recent Citizens United decision. Supposedly, though I didn't see it, Justice Alito shook his head and said "That's not right." I haven't read any of the commentary on this yet. But let me make the following assumption: right-leaning legal thinkers are comparing this to court-packing and all manner of other evils. Left-leaning legal thinkers are saying that there's nothing wrong with shining a light on an institution that is almost completely unaccountable for the work it does.

My immediate reaction was guilty pleasure. I liked the fact that Justice Roberts, Justice Kennedy, and Justice Alito were called out in the most public setting possible by someone who commands respect. And for the second time in a couple of days, no less.

Now I haven't read all or even most of Citizens United. I suspect that it's based on a justifiable reading of the First Amendment. I'm quite certain it puts yet another nail in the coffin of conservative hand-wringing about judicial activism. To the extent there's even room for another nail anyway.

But what if it had been another president up there on the dais? The last one, for example. And what if instead of criticizing Citizens United, he'd been criticizing the decision in Lawrence v. Texas? I think I would have been less happy about that. But I think I would have been wrong.

It is now commonly accepted that presidents are going to appoint justices who share similar political philosophies. How does this President's criticism of a controversial decision differ from his predecessor's appointment of two extremely conservative justices in a clear effort to push the Court further to the right? It really doesn't. Both are public acts. Both have in mind political goals. So why are conservatives (probably)* so upset this morning? Because they lost the White House. They might get it back in a few years. They might not. But that's what's really going on here.

Monday, January 25, 2010

If you litigate, chances are that at some point in your career you'll submit to a court (or oppose) an application for attorneys' fees. If you do business, chances are that some point you'll have to retain an attorney to fight like pit bull on your behalf. Either way, you should take a few minutes and read Haddad v. Wal-Mart Stores, Inc., SJC No. 10261A., decided last week.

It's all here: how competent and careful attorneys bill their time, the degree of attention with which lawyers pick over bills submitted by their prevailing opponents, how courts do their best to reach rough justice and make both sides feel like they've won (or lost). After reading it, you may feel like you need to take a shower. Or, if you're like me, you might revel for a moment in the messiness of our very public legal system.

Wednesday, January 20, 2010

In the middle of October, I received a call from a reporter for a major local publication. He had seen this post and seemed to expect that I would have bad things to say about Martha Coakley, who at that point had not yet won the primary election. Coakley, remember, had a rough time when she argued in front of the Supreme Court, at one point not knowing the answer to a predictable question and at another misstating the record and being corrected by the Chief Justice.

I was reluctant to criticize the Attorney General, in part due to cowardice and in part because arguing in front of any appellate panel is an immensely difficult skill to master. Much less the United States Supreme Court. So I wouldn't give this reporter the juicy quote he unabashedly sought and he moved on.

But I had misgivings. The Attorney General's performance before the Supreme Court was a signal that something was amiss. Perhaps it was a lack of diligence. Or an inability to engage in complex strategic thinking. Perhaps it was a lack of respect for an important institution. Or all three. Or something else. Whatever it was, I was spooked. My vote in the primary reflected that.

There are smarter, snarkier, more eloquent folks than me spilling bytes and barrels of ink about HOW ON EARTH THIS HAPPENED. It could have been a wave (maybe) or sexism (maybe) or tepid support from the party (er, probably not). I find myself returning to that Supreme Court argument. You don't back into a seat in the United States Senate. If you don't work for it -- I mean put every ounce of your being into it -- and you don't understand the strategic significance of looking like you're not working for it, people are going to think that you don't respect them and vote for the candidate who *is* working hard. Which seems to be what happened.

As for Scott Brown, well, he's to be congratulated. I can't restrain myself from providing one word of unsolicited advice to our new Senator: you probably don't want to join Jim DeMint and Tom Coburn's Ayn Rand book club or anything. You are, after all, a Senator from Massachusetts, not Oklahoma. You'll want to have that in mind as you make your way.

Tuesday, January 5, 2010

Law-and-order types in the legislature -- and law-and-order types who want to be in the legislature but aren't right now -- should take a look at the Supreme Judicial Court's opiniontoday in Souza v. Sheriff of Bristol County, No. SJC 10508, helpfully reproduced by Adam Gaffin at Universal Hub.

The Court affirmed the trial court's determination that the "sheriff lacked authority to impose the cost of care, medical care, haircut, and GED fees" on inmates. But it didn't hold that such fees were unconstitutional. No -- just that the legislature hasn't authorized the sheriff to collect them. If there *isn't* some diligent staffer drafting a bill at this very moment, I'd be a bit surprised.